Merry Christmas 2011!

Walmart and Concentra to Pay $8,000,000 Settlement

In the Gianzero federal case Wal-Mart and Concentra were sued in a class action lawsuit alleging various violations including of the Colorado Workers Compensation Act, bad faith, RICO, and much more. The basics of the case was the assertion that Wal-Mart and its insurer conspired to dictate, withhold, delay, deny or interfere with the medical care of injured workers. The case made a big impression and received commentary elsewhere. The allegations involved setting forth protocols for treatment and referrals which violated the Workers Comp Act and which restricted or denied or dictated care. As alleged, Concentra then implemented "flowsheets" which were then imposed on its doctors which preempted the exercise of independent medical judgment. In my view the adjuster could control treatment which I see as the inherent conflict in most health insurance situations. He who has the money can be expected to try to set the rules! Naturally all of this was hotly contested but in the proposed settlement Wal-Mart, Concentra and their insurers have recently agreed to pay $8,000,000 to settle the case without formally admitting they were out of line. Class members would receive up to $520 each if they were treated at a Concentra facility between 2001 and November 1, 2011. The detailed proposal sets forth the proposed settlement and more is available at this website including the original complaint and the notice of the proposed settlement to potential class members. If you were injured working at Wal-Mart you may be eligible for a check should it all be approved. Added expenses are also sought by the attorneys for fees and costs. Moreover as part of the settlement they are to cease the disputed activity for 4 years and have educational training for adjusters and certain staff of Concentra regarding the prohibition on dictation of care provisions of the Workers Compensation Act. In my view this is a significant victory for doctors and claimants who deserve to have medical treatment handled as a medical matter and not unduly influenced by non-medical personnel who work for the employer or its insurer.

Social Security seeks to review the disability process

Over at the Wall Street Journal they are reporting that the Social Security Administration is obtaining an "independent" review of the disability hearing process. The article appears to emphasize that too many judges are approving cases at the hearing stage. It asserts that some judges approve 99% of claimants that have sought a hearing after a denial. Of course it also notes some judges approve very little like the judge who approves just 13% of the claims at the hearing stage. They indicate funds will run out by 2017 at the current rate but this statistic is open to dispute. Depending on your political persuasion Social Security is in such bad shape that we should phase it out or it is fine and with tweaks can last indefintely. I am closer to the latter then the former but that is a long story. I do know that judges have their own stats on granting/denying benefits. But concentrating on judges who grant benefits is not the right approach. Being concerned about too many favorable decisions but not those judges who deny excessively is too one sided. I am all for saving money but not at the expense of the truly disabled which I consider ghoulish. There should be some accountability for all judges. The article also points out that the federal courts seem to be overturning denials 51% of the time as if the federal judge is off base. My experience is just the reverse. Most federal judges who overturn a decision are quite right. Even the government attorneys often stipulate the SS judge made a mistake. SS judges do make mistakes and at times the denial of benefits seems off base. Implying the federal judge is interpreting the rules improperly is absurd. Most decisions are far better reasoned then the decision denying benefits. However to be fair many of these overturned decisions are just being sent back to the original SS judge for more workup on a remand. My experience with claimants is that the vast majority are truly disabled and unemployable so we should be focusing on speeding up the process (for time to a hearing click here)and quit trying to label Social Security as the problem. Instead we should be fixing it for all future generations.

Issues to Think About for 2012

Around this time of the year I look back at the year and ahead too. Someone asked me about national issues in the field of workers comp but really not much has changed over the last year in Colorado. By that I do not mean that there were no changes or interesting developments but that it was a year of slow or minimal changes in the law. Still there were some developments. For the statutory developments just click here for an overview. For what is new at the Division of Workers Compensation you can click here. For caselaw we cover this in our blog. But as for the national or evolving issues in this field I guess the overriding issue is the economy. Still that is not unique to workers comp. What I have noticed over the years is there are increasingly technical or more precisely medical issues in workers comp. They usually trigger a battle of experts. What you then see are many cases that have become medical battlegrounds. The battling experts are the doctors. In such battles the advantage is often with the insurer. First, the treating doctor is usually selected by the insurer or the employer. Not exactly a good deal for the employee especially when there is a controversy. Next they cultivate those doctors who issue reports and testify to the benefit of the insurer position. It's expensive for a claimant to use his or her own doctors. Testimony expenses are billed at $450 an hour in most cases and includes commuting and wait time too. It is easy to spend over $2000 for one such expert. Advantage? Insurer (I have had insurance defense attorneys tell me they can pay $5000 or even $10000 for their experts). This can cripple a claimant's case. It strikes me that this is impairing a fair fight or what I would call access to the system. In civil matters there is a growing awareness of a need to simplify proceedings because when matters are complex or highly technical it works to the advantage of those with the money. In Colorado there is a interesting new seminar on this as relates to civil proceedings other then workers comp but it strikes me that improving access in workers comp is extremely important. By permitting many experts we skyrocket the costs of a hearing. It may be wise to limit this. Perhaps for a fair fight we should let the claimant have his expert as a covered benefit but that is not the current law. In my opinion any effort that speeds the process, makes it a fair fight and reduces something that is complicated to what the computer crowd would call user friendly is to be lauded. The workers compensation system was not intended to be unfriendly to injured workers. It was intended to be an efficient way to deal with work injuries and hopefully protect the worker while he recovers from his injury. In my view that is not happening and perhaps we need address this so we get back to the original purpose of the workers comp laws...to assist injured workers even if benefits are limited by statute. Otherwise the problem is shifted to all of us.

Pinnacol again seeks privatization

The Denver Post is reporting how once again there is an effort to privatize Pinnacol Assurance, the state's quasi public/private workers comp insurer. Pinnacol is also the largest insurer in Colorado in this area. Now they are reviewing the proposal that the state gets a 40% stake worth $340 million dollars in return for greater autonomy for Pinnacol. What sticks with me is that the state saw big cash amounts held by Pinnacol and wanted a piece of that to help with the state budget. Pinnacol then sought to get away from state influence and control. This is a story that reminds me of the old serial thrillers. This version is still controversial as I suspect some may question the wisdom of the state agreeing to this. Colorado created Pinnacol to make it easier for businesses, especially high risk businesses to obtain workers compensation insurance for a fair price. I remember getting claimant benefit checks from the state accounts but that was years ago. The point is that it has thrived and been effective in Colorado with state backing and now that it is doing well wants more autonomy. Control and money issues are involved so of course with such issues comes controversy.

Top Workers Compensation Blogs for 2011

This blog has again been honored by its 2011 selection into the top 25 worker's comp blogs in the country by LexisNexis. This is our fourth year in a row. But I really liked what they said about this blog because it brings home the point that good writing about this tough area need not be boring at all and perhaps even worthwhile to our readers. Here from the LexisNexis website is what was said:

" Who says workers' comp writing has to be boring? Colorado Workers' Comp Blog, offered by Colorado Springs Attorney Richard Falcone, is an excellent example of an attorney who writes with depth and clarity, all the while sprinkled with flair and even humor. Falcone, who writes from the perspective of the injured and disabled worker, continues to provide readers with commentary and analysis. Falcone's September 16, 2011 post, entitled "New Court Case on Medical Benefits," and his May 13, 2011 article, "Munoz Court Case on DIME waiver," sift through complex medical issues with relative ease. He also enjoys the hypothetical-his February 4, 2011, "Does Charlie Sheen Have a Workers' Comp Claim," reacts to a whimsical question posted on a satirical blog, "the Spoof," regarding the antics of the former star of television's Two and a Half Men."

Administrative Law Judge Orders for September 2011

I have indicated in the past that the Office of Administrative Courts will post just about all the orders issued in the state of Colorado following hearings in workers compensation cases. In September they posted the orders and it covers some 470 pages. I skimmed through all of them and many are quite interesting reads. A great many of them involve medical legal issues so they have opinions by numerous doctors. In one early case I counted 8 doctors. Often such cases involve causality questions pertaining to whether or not a claim is work related or questions regarding treatment. I should remind claimants to discuss all your complaints at every visit with the doctor. In my experience some of the doctors do not document as we would expect them to do. As such you can provide the doctor with your history in writing if need be. By history I mean a dated statement of your current problems which you bring to your doctor each visit. Always make a copy for your records. This can prevent any misunderstandings later on. In at least one of these cases it appears the claimant asserted he was telling and telling the doctor at every visit something which never was noted by the doctor. Of course the decision went against the claimant on that point. I have had clients take a written history into their doctor every time just to keep all the details accurate. A failure to complain can be assumed to mean an absence of pain or limitation. Anyway these cases tell us what sorts of issues are going to hearing in Colorado.

Colorado workers comp insurance rates to go up

The Denver Post is reporting that businesses can expect a rate increase on their workers compensation insurance coverage. This after a few years of declines. Why? The number of claims is not going up. The explanation appears to be in the continuous and unrelenting increase in medical costs. Here is the Colorado statement on all this. This rise in medical costs when the economy is not inflating remains ominous for all of us. The failure of society to address this is rather sad. We all talk about it but it takes a concerted effort and in our politically charged country we are less interested in problem solving and more in ideology. Wouldn't it be nice if they set up a task force to address such costs in a sensible way? I mean an across the board analytical review. If medications are a big factor find ways to lower that expense. If we need more nurses or practitioners find ways to increase the numbers with educational incentives. If caution leads to the running of multiple and usually unneeded tests find ways to prioritize those tests rather then run all of them at a time. If malpractice rates are too high find ways to make providers accountable without increasing those rates. I mean weed out the bad apples especially in workers compensation. Simplify the paperwork too! While I do like the medical treatment guidelines I saw recently what appears to be making it more complicated to obtain prior authorization. In workers compensation there are many disputes in what I see as primarily medical legal issues. When we go to a hearing and it seems to be a legal issue on compensability in reality many such cases involve medical causality. So some of these rising costs involve insurers hiring experts to question causality and treatment. As an example an attorney related to me that he had obtained a DIME opinion that the claimant is not at MMI. In the past this just led to more treatment and a reassessment. Overcoming a DIME historically has not been easy but the pattern is now to question everything. There are doctors out there that will nearly always assert an injury is not work related or that the DIME doctor made a mistake. A DIME would cost $675 but they spend $5000 or more fighting it. The point is not all the rising costs in workers compensation are based on purely medical matters. Some come from the insurer disputing matters. It also drags out the proceedings which I do not really see as helping the claimant needing treatment and it is costly. In any event businesses can expect higher workers comp premiums next year.

Court Allows TTD After MMI in Loofbourrow Case

In Loofbourrow the Colorado Court of Appeals dealt with a case where the claimant had been placed at MMI (maximum medical improvement)by the authorized medical physician at the time. He returned to work and then worsened. At that point he requested medical treatment and the situation deteriorated as the Respondents denied the claim and did not provide treatment. Even the AWW (average weekly wage) was disputed. At the hearing the judge ruled in favor of the claimant on the issues. He was granted TTD (temporary total disability) benefits even though he had been previously placed at MMI and never contested that. The claim was determined to be compensable and claimant had the right to pick his doctor given the lack of medical treatment. He even won on the AWW issue which seemed to involve reduced hours after the original injury but the judge provided a higher figure. The other side appealed and ICAP (Industrial Claim Appeals Panel) overturned the award of TTD which led to the court decision just issued this week. The court affirmed the judge and reversed ICAP. The Respondents asserted that after being placed at MMI which was never disputed the claimant could not receive TTD. That legal position is a correct one when a claimant has been receiving TTD and reaches MMI. However in this case the court reasoned that after MMI he worsened so the claim remained open to further review. He did not need to seek to reopen and his right to challenge the earlier MMI could not happen until after a FAL (Final Admission of Liability) was filed which had yet to happen. Can you imagine the position this claimant was in? He is hurt at work but seemingly quickly recovers. But his hours are reduced and when he worsens the Respondents decide to fight everything. It is appealed and then appealed again to the court. How long did this person go without benefits as the administrative process went through all the appeals? It appears the last work was in August 2009 so while the court ruled in the claimants favor it took quite a while to obtain benefits and that is assuming there will not be a further appeal. UPDATE: The Colorado Supreme Court affirmed this decision on January 27, 2014.

Chavez: Court Decision on Subrogation Rights

In the Chavez decision the Colorado Court of Appeals ruled against Pinnacol's efforts to obtain or share in a settlement made between the injured worker and a third party. Subrogation can give the workers comp insurer rights to obtain reimbursement from some other responsible party. Here the claimant was injured in an auto accident but received workers comp benefits. He then sought to pursue a tort claim on the accident against others. Pinnacol joined that case because it can assert its right to reimbursement should there be a big recovery. However in this case the employee settled what was called his non-economic damages such as pain and suffering. The settlement was set up not to prejudice Pinnacol's right to proceed but Pinnacol felt it was entitled to approve the settlement or at least that it was entitled to some portion of that settlement. The court ruled that the settlement was reasonable and did not affect Pinnacol's rights. As set up by the language in the settlement Pinnacol's ability to pursue its claims was not affected by all this so it was not entitled to any of the settlement. Here the non-economic damages that were settled involve matters never paid through workers comp by Pinnacol. Pain and suffering for example is not a workers comp benefit but Pinnacol felt it was wronged anyway. It lost in the original case and then in this appeal.

RIP Curt Kriksciun

Former prehearing Administrative Law Judge and Industrial Claims Appeal Panel member Curt Kriksciun passed away on October 4, 2011. While I may not have always agreed with his views he was truly a gentleman. As a prehearing judge especially in handling settlement conferences he was usually seeking compromise whenever possible. To do so he would chat and provide comments from his experience. This usually would have a calming effect with my clients who were often stressed by the process. My impression is that he always sought to be neutral and objective...even if it was difficult. But by being friendly and relaxed in his approach he would lower the stress level. I am sure he had this effect with many people that had matters before him. He then became a decision maker or member of the panel reviewing cases appealed after the initial decision. He performed well in this last position and I daresay the quality of those decisions improved with his involvement.
Services will be Tuesday October 11th.

New Court Case on Medical Benefits

The Colorado Court of Appeals issued a decision yesterday that concerns ongoing medical benefits. In the Hire Quest case we have a rather technical argument that is addressed by the court. It seems an example of how technical arguments get in workers compensation proceedings. In this case the parties went forward at a first hearing which addressed a safety rule violation, credits for paid temporary benefits and the permanent impairment based on a DIME (Division Independent Medical Examination). Before the hearing the issue of permanency became uncontested because the employer/insurer withdrew the opposition to the DIME doctors impairment rating. So the first hearing addressed permanency, temporary and safety rule violation issues but that judge said issues not expressly decided are reserved for future determination. Well claimant later went forward on the issue of ongoing medical treatment needed and the other side said he could not because he never raised the issue at the first hearing and it was waived. They also asserted that the judge reserving issues was not specific enough so that prior hearing closed out the matter. The court decided that the reservation was good enough to preserve the right to address medical benefits after the first hearing so they found in favor of the claimant. Common sense would tell you that medical benefits could be addressed later but the insurer tried to use a prior court decision to say the claimant was required to add the medical issues at the first hearing or else it was waived. This waiver argument is essentially saying address all issues at once or the insurer saves money by alleging too bad so sad you lose (waive) your potential right to further treatment. Even if the judge reserves matters it is not good enough unless it is a specific reservation of a medical issue according to the insurer's view of an early case they were citing. The court disagreed with that interpretation. My view is that workers comp should handle all treatment that is needed for a work injury and not made into a game of technicalities which passes the buck on treatment to others such as the taxpayers. In this case we did have the DIME doctor saying more treatment was needed and I am not sure why it was not made an issue but it could be that there was no dispute made by the insurer until later. To me you have to wonder if the insurer waived objecting to further treatment but anyway the claimant prevailed.

Recent Social Security Rule Hinders Claimants

Just recently effective the Social Security Administration issued SSR 11-1p which affects those appealing a denial after a hearing. The appeal process is an ongoing process and after a hearing you can seek an Appeals Council review and thereafter also can proceed into the federal courts. So you wait for a hearing and if, for some reason, you are denied benefits after a hearing you can pursue further appeals. This takes time but I have seen appeals take several years but finally be successful. But to any claimant this new policy is bad news. For some time if you lost at the hearing and appealed further you often would be told to file another application for benefits with a date after the hearing decision. Then you would have two proceedings going primarily to preserve your right to several months of benefits. The theory is that if you just waited on the appeal and it took 6 months or longer then when you get around to trying all over again you lost those months of waiting. Now the agency has decided not to allow that new application or so it seems on first impression. Imagine having cancer but losing at the hearing on some basis. Then you take a turn for the worst but are told by this policy that any new application has to wait on your appeal or give up your appeal to file a new application. I understand the need not to complicate matters but this policy may result in denials of due process. At least those representing claimants are quite disturbed by it. Here is one view on this and here is another and still another. I would say that this is an area that requires proceeding very carefully. This ruling is new and untested and may well be attacked by those who believe you have a right to file a new application but for now I am just letting you know about it. Time will tell how this is best handled.

Division IME Forms Including a new one WC78

You can access numerous forms pertaining to DIME's or Division IME's at this webpage maintained by the Division. It includes a new form which pertains to requesting a DIME to assess maximum medical improvement (MMI) after 18 months. Usually your treating physician determines MMI as soon as possible but there are times when he has not addressed it despite the passage of much time and treatment. The insurer may then seek to arrange a DIME to determine MMI. This new form WC78 is part of that process. Be aware that this 18 month DIME is addressing MMI. If impairment is also addressed it does not mean that is anything more then informational. In a recent Industrial Claims Appeal case I call Baca the insurer went with an 18 month DIME and then went with that DIME's impairment rating which was zero. They filed a Final Admission trying to close the case. The local judge ruled against them and struck the Final Admission. directing that the claimant return to the treating physician for the rating. The higher panel in effect stopped the appeal because that ruling did not deal with money or benefits but the case makes us all aware that an 18 month DIME may not address impairment in a way that can be acted upon by the insurer. Of course the Baca case may not be over but the form WC78 issued shortly thereafter indicates any rating by a 18 month DIME is informational only.

Social Security Disability Close to Insolvent?

The AP news is reporting that Social Security disability is getting close to insolvent. The news article points out that with the aging of boomers and the economy more people are applying for disability benefits. So right when we are all concerned about debt and revenues we have another sign of the times. Despite the fact that for years the entire Social Security system was dipped into by the federal government instead of set aside we have another potential problem. I am not sure how many may think that those getting SSDI and SSI are not entitled but the vast majority of those drawing benefits have run a gauntlet to obtain benefits which are a fraction of what you can earn in the world of employment. I remember one time realizing how tough it must be for one client who was earning over $60000 a year to seek annual benefits that were perhaps 20% of what he had earned. Yet he had to go to a hearing (the wait took over a year) to prove he no longer was employable. When you are not working and in poor health the process can seem agonizingly slow. Sure some of those receiving benefits may not deserve them but almost all do deserve them and the program has worked for many years. There is a need for increased revenues into the system yet politics is getting in the way. I can say that some feel lifting the cap or lid for contributing into the system would make it solvent but that may not be passed. Currently all wage earners pay into it up to $106800. If you make more you do not pay more. So the athletes, the corporate executives and others making really good pay have a benefit none of the rest of us have. They do not pay a dime over $106800.
UPDATE AND A NEW VIEW ON THIS: Over at another website they are reporting that this story about insolvency is not totally accurate. The article points out SSD programs and the fund are not close to insolvent but that it is more of an accounting situation. In the past the disability fund and the retirement fund have separate accounts but have transferred funds between them from time to time. A simple accounting transfer and both are solvent until at least the year 2035. This should remind us to be careful about assuming all the stories swirling about Social Security are accurate. One source for further details to strengthen Social Security is here.

Workers Comp Costs Decline

As noted in this press release/article workers compensation costs have been declining. While medical costs are always high the fact is there is more unemployment and more hiring of overseas labor, especially in manufacturing. Construction is down. Hiring is down. With less workers there can be less claims and those working may hesitate to file a claim in such a tough economy. I also think that many claims are still contested and in medical matters the advantage is with the insurer/employer. You usually do not chose your doctor, they do. In many cases it can be difficult to prove you sustained a work injury when the other side fights it and brings in their doctors. The claimant, again in this tough economy, may not have the funds to make it a fair fight. I read case after case where I suspect claimants lose when the hired guns (experts hired by the other side) provide opinions which overwhelm what I consider common sense. Yet that is the way it is when a matter is medical in nature (such as did the claimant's problems come from work or elsewhere) and experts are required to analyze the claim. The smart claimant may fight back and spend the bucks but it remains a risk every time there is a hearing. The word spreads and some hurt at work decide it is not worth the hassle. Originally the workers compensation system was set up to provide prompt action and benefits. That has eroded away in recent years. Cases take months and often years to be settled or resolved. I have heard of people deciding to use their health insurance just to avoid the workers comp system. That is not only a shame and not only shameful it is also wrong. What does it mean? Employer costs for workers comp insurance are down to levels not seen in 30 years as noted in the article.

Pinnacol Withdraws Handling Cases for State

This article from the Pueblo Chieftain states that Pinnacol Assurance is withdrawing from being the adjustor or representative for the state of Colorado's workers comp cases. If you worked for the state and had a work injury Pinnacol would have handled the claim for the state. It charged for doing that and decided it no longer wanted to handle the claims. The state acted and replaced Pinnacol with another company, Broadspire. Some may be upset with Pinnacol since it was very closely associated with the state from its inception. The reason given...that state claims are hard to handle may or may not be so but Pinnacol may be setting up to break away from the state entirely too. I do know that in the past it was more difficult to settle when we had to go through an attorney who then went to Pinnacol who then had to go through the state agency/employer.

Colorado Governor Reviewing Privatization of Pinnacol

As noted today in this Denver Post article it appears there still is interest in privatizing Pinnacol. Pinnacol Assurance is the state's largest workers comp insurer and originally was set up by the state to assist businesses especially high risk businesses in obtaining workers comp insurance. Despite many insurers saying otherwise usually premiums generate decent revenues. The so called cash reserves are amounts set aside to deal with claims or matters that require reserves but they do seem like profits when they get pretty high. Colorado legislators, in the past, thought about taking some of that to help with the budget problems but it never happened. New board members were appointed and there remains interest in exploring privitizing Pinnacol. The last time Pinnacol was willing to pay to obtain more private operations. One Republican legislator has said any cash to do so should go to the business owners who paid Pinnacol and are considered policyholders but of course Pinnacol also has a public side so once again we will see what happens.

New Policy on Prehearings

In an email sent to many representatives the word is out on some changes in setting up prehearings in Colorado workers compensation cases. Prehearings are useful in clearing up some disputes. For example if the other side has not provided discovery you might ask for a prehearing to compel the disclosures. Imagine going into a real hearing without disclosures of what the witnesses may say and what evidence will be submitted. A prehearing judge hears what is argued and decides on these preliminary but important matters. An order is issued which you disregard at your peril. A prehearing is not a full scale hearing with evidence and testimony but usually concerns legal arguments where the judge assists in moving the matter forward by issuing an order. In any event we are now told the email for this is dowc-phc@state.co.us. We are also told not to submit more then 10 pages by fax so seemingly they prefer that you email the materials. Should you do so at the last minute call them at 303-866-5508 (the number to set a prehearing)so they can retrieve the email in time for the prehearing. They also want you, when setting a prehearing, to confirm the date and time with the other side and provide email addresses to the prehearing unit. They also request being notified as soon as possible when a party is cancelling a settlement conference. Most of this is just common sense and contact information. No one likes it when someone is a no show or the proceeding is slowed. The prehearing judge does not have unlimited time to wait on faxed materials or emails so the point of this is to speed the process along. I can say that often in the past settlement conferences were cancelled at the last minute by the respondents. Usually it was because the respondent attorney did not have the dollar authority to settle.

Australian Woman Claims sex accident is work related

This recent news article caught my eye so it makes for a good read. I am posting it here without any further comment other than to say that most of us in the field have had unusual situations that require research to assess if an injury could be considered compensable. Never let it be said that the law is boring! Those traveling for a company or stationed at some distance from their home are not simply limited to asserting a claim for injuries sustained during working hours. The average employee goes home and has his own time in his own home but when you are stationed elsewhere other factors may apply. Here this young lady in Australia was having sex in her hotel room when the activity caused an accident resulting in injury. Workers comp? In Colorado and elsewhere you should review the law for that jurisdiction.

Rule 16 and 18 Proposed Changes

The Division lets us know about proposed rule changes and this change concerns Rules 16 and 18. These are medical matters which are changed just about every year because medical costs keep rising. Rule 18 involves medical billing and Rule 16 utilization review. The proposed rules are posted and then adopted after comments are received and reviewed. Most of this is not very exciting information except for doctors and other providers although at times a claimant or claimant's attorney does have to look at the rules. What a doctor can charge for legal things like testimony, consultations, reports and the like are important to know. Such matters are often the responsibility of the claimant if he or she asks for any of them. So wanting to have the doctor come to the hearing is fine but it is also at a cost to the claimant. So while these rules seem complicated to read and perhaps not that important to claimants most of the time there are situations where a claimant needs to check on what the rule says. For example, in the past there has been litigation on the subject of what is called prior authorization. This area involves a provider getting advance approval for something and when approval is not forthcoming the doctor and perhaps the claimants attorney may wish to dispute it and even seek penalties. What is addressed in Rule 16 on the subject becomes quite important in such a situation.

Retirement is coming soon!

While I shall continue to publish this blog it is just about my time to retire from an active law practice. I am not taking any new matters and only seeking to resolve all the remaining cases that I have. What I can say to all those thinking about and searching for an attorney is whenever possible at least consult with an attorney about your case. The laws and rules involving workers compensation and Social Security disability are quite complex. Thinking it is just common sense and form work is a major mistake. Deadlines are not to be ignored and some matters seem to go against common sense. The reason is that these areas are creatures of statute. Benefits, rights and responsibilities are what the law says they are not what you think it should be. Entire claims can be lost by assuming something that is not so. So it is better to consult to assess what can be done and if you need legal help. Claims that look like small matters or you are told are minor can be worth an enormous sum. Never rely on the accuracy of what you are being told by your employer or the insurer. Just protect yourself and the best way to do that may well be with an attorney. I have nothing to gain here because I am retiring but I know this...wherever possible use an experienced attorney. Even cases where you think the offer to settle is decent may actually be worth much more. Even where all is going along fine so you think you are being taken care of by the insurer please consult with an attorney. Too much may be at stake financially, medically and emotionally to not obtain good legal advice. And do not be afraid to check with more then one attorney. It is your claim and your future that is at stake. As I head into the sunset of my practice I can say that the legal profession has been rewarding not just financially but in making a difference for others. You usually do it one person and one case at a time but you also achieve real results for real people. You also stand up for those injured and disabled just when they are most vulnerable. For me that has been very special. So thanks for allowing me to help. I shall continue however to write and speak up in this blog for as long as I can.

Medicare Quickly Covers End Stage Renal Disease

There need be no prolonged wait to obtain medicare if you have ESRD (end stage renal disease). Often those who obtain Social Security disability have to wait for medicare but in this situation no matter who you are or even if you have not obtained any disability benefits you can quickly get medicare coverage. This article which appears in this link addresses this matter along with other points. Sadly obtaining disability can be a prolonged process but it is good to know that in this area you can quickly get on medicare regardless of your age or circumstance. I still believe that leaving medical care in the hands of private insurance is not the best approach for those with serious injury or illness. We can believe in free enterprise but also realize that society has to step in when it affects all of us. We see this with fire protection and police and the military and education. Also we should see that in the human area of healthcare. Its high cost and immense impact on all of us should be a social or societal concern. In any event medicare can step in for you if you have ESRD without much waiting around.

Maximum rates and the caps

The Division of Workers Compensation has just posted the rates for maximum benefits and related math calculations. For example they indicate that as of January 1, 2012 the caps are to be $76605.00 and $153210.00. Maximum rates are usually related to your average weekly wage not to the severity of your injury. Those with a workers compensation injury are paid two thirds of their average weekly wage for temporary benefits in the majority of times. There are exceptions that can lower this amount and there are occasions when the average weekly wage should be adjusted higher. If you are a claimant never assume the figure your employer or its insurer says is your wage. Never assume they are right no matter what is told you. If you are an employer or insurer never assume the figure provided by a boss is correct. A wage calculation is not a simple matter and there can be many variables that affect the calculation. However the fact you sustained a horrific injury is not going to affect the math. It is based on the math and when in doubt is determined by a judge when someone takes it to a hearing. In a typical situation the injured worker receives two thirds of his average weekly wage during the time he is temporarily disabled which s adjusted if you work part time. If a claimant returns to work full time temporary benefits stop. Such benefits can stop for other reasons as well as provided by law. You can review that with your attorney or seek help from the Division to understand it. Customer Service phone is (303) 318-8700. Please note the two thirds figure has not been considered taxable but it is not the same as your paycheck amount. It is what it is as set forth by law. But each year there can be adjustments and that is what has been done and posted at the Division today. Caps are amounts that place a limit on your compensation. They do not apply to medical benefits which are not capped (at least not yet) and they do not apply to those permanently and totally disabled. But if you are drawing temporary benefits and then entitled to permanent benefits those amounts can be capped when added up. Temporary benefits alone are not capped but if added to permanent benefits the law can apply a cap. Regretably this is a tough matter for claimants but the state has decided through its elected representatives to place limits in certain areas. In a sense most insurance policies have limits and workers compensation is no different.

Claimant Arrested for Fraud

As reported in this article a claimant was indicted on suspicion of stealing $140000 in funds from Pinnacol Assurance, the insurer handling more workers compensation claims in Colorado then anyone else. The spouse was also indicted. In my experience this is relatively rare. A claimant may exaggerate his condition but seldom is it outright fraud. Some employers are much more likely in my experience to intentionally coverup claims made by employees. In any event this news is unfortunate as it suggests that surveillance be used in many cases. There are many claimants who must be put through this process even though they have legitimate injuries. Yet insurers do not just look for fraud they also look for any possible evidence that helps them to defend the claim. There are very few arrests but there are many cases where the insurer has evidence the claimant can do more then is recommended by his doctors. So judges may be shown this but also doctors. If you exceed your restrictions and that is videotaped then your case has not only been weakened but your doctor may become quite upset with you which also makes him question your treatment and future needs.

Colorado Springs News on Dr Shockney

I am providing a link to a Gazette newspaper article on a local psychotherapist Dr Shockney. It is a detailed article which questions the credentials and expertise of this individual. Dr Shockney was sometimes involved in workers compensation cases and also in many other matters, civil and criminal. I am not sure what the outcome of this will be but today another article was posted over at the Gazette. I imagine that more will be forthcoming. A psychiatrist is an M.D., but there are other professionals in the mental health field and the article suggests that the state does not regulate psychotherapists very well. The original article was explosive to say the least. It certainly appears to be highly researched but we will have to wait for further developments. Some fields do not require an extensive education and testing or life experiences can be part of your expertise.
UPDATE: The Gazette on June 22, 2011 is reporting that Dr. Shockney is retiring immediately.

DIME Brochure

A DIME or Division Independent Medical Examination is a very unique process which allows those requesting it to seek to obtain a truly neutral evaluation of a claimant's impairment and treatment plus even more. It is a powerful force in keeping the system honest since most treating physicians have been selected by the employer/insurer and many claimants remain suspicious of that. To claimants such physicians often seem not to be on their side. In point of fact they may be quite capable but there are others who may be less then thorough or devoted to the patient/claimant. A DIME affords a claimant or even the other side the opportunity to have treatment and impairment reviewed. Moreover the law has made a DIME a strong force that can only be overcome by clear and convincing evidence in most cases. There are exceptions but the general rule requires strong evidence to overcome the DIME opinion especially on the issue of MMI or impairment. The Division has a brochure available to review the DIME process and it is worth reading. In my practice we use the DIME process in the vast majority of cases though in some cases we do accept the treaters opinion. By the way you can agree with the treaters rating but still seek permanent total disability by objecting and following through as set forth by the law. A physician may say you have 20% impairment but for you perhaps you can no longer work. You have the right to seek total disability but you must act timely and sensibly to make your case. A lawyer is usually essential here.

State Social Security Polls

The uproar over possible cuts in Social Security and Medicare continues. At this polling website they show us the Colorado polls and they assert we should strengthen Social Security not cut it. However the so called voucher system touted by some politicians appears to push more of a burden on seniors to fund their medical care at the very time their income is reduced. No doubt there is much to criticize with any government program but turning matters over to private insurance is like turning over all our finances to the bankers. While free enterprise is great it can also lead to abuses based on financial power. "He who has the gold makes the rules" can be very harmful to a society. As a society we need certain basic matters covered and others regulated. It is a price you pay for being in the society and yet also it is a value to all of us to have some benefits. Moreover, historically we have tried as a society to protect the old, the young and the disabled and hopefully that will continue. Clearly most Americans feel the same. It will be interesting to follow this debate as it strikes me as an effort to begin eliminating programs that only need tweaking while not really addressing jobs and the budget. By the way watch out for those who are using the word "reform" to discuss Social Security/Medicare. Most of us in Colorado went through the "reform" of workers compensation. It was a euphemism for cuts in benefits to the harm of claimants.

SB 11-199

While this senate bill 11-199 is awaiting the governor's signature I expect it to become law. There are 4 provisions in the bill worth noting. First, it requires that the insurer pay costs in advance, if requested by the claimant, for an insurer IME or vocational evaluation. This means the cost for the claimant to travel, food and even a hotel must be paid or the claimant can refuse to attend. If they pay and claimant does not attend they can get an offset from future compensation due the claimant. Next, a Final Admission must admit for future recommended treatment by the authorized doctor unless there is a record of a contrary medical opinion. This prevents the insurer from disregarding physician maintenance treatment once the claimant reaches MMI. At times insurers never admit for further treatment even though its need is undisputed. A claimant may think or even be told by the doctor he can get further treatment only to be denied by the insurer and the bill seeks to avoid such a practice. Third,procedurally it corrects a discovery matter by not requiring those represented by an attorney to first ask permission before starting discovery. That extra step (documenting you asked permission) seemed just a waste of time and paper. Last, the bill makes it clear that any lump sum request regardless of the date of injury is not a waiver of the right to seek permanent total benefits. For those readers not familiar with the last issue the history of it is a claimant would receive an admission for permanent partial benefits of a certain amount, let us say $30000.00, and yet feel he was much more disabled so he'd seek permanent total disability benefits. Since by law the admission had to be paid out every other week the claimant sought it in a lump sum. That was deemed a waiver of his claim for permanent total benefits. The poor claimant was stopped in his tracks by accepting the lump sum perhaps just to pay bills and other expenses. You had to be careful to avoid this but the law has been changed. A total disability claim is no longer waived by accepting a lump sum.

Health Coverage in Colorado

If you have had a work injury or disability you or other family members may need health insurance for any future problems. Perhaps you qualify for medicare once you are disabled or retire but what about your spouse? Perhaps you are running out of any continuation health coverage. For those of us in Colorado here are a couple of websites that provide information you may find useful. The first site is for those who are not insured. Is coverage possible? Yes so click here for this website. Anyone with a preexisting condition (and that means most of us) should not be unable to obtain insurance coverage. While many politicos preach about this way or that the fact is that times have been tough for the uninsured and those with preexisting conditions. Group coverage is fine until you lose your job. At this website if you have had coverage within the last 6 months you may be able to use the information to obtain further coverage. After all COBRA coverage does not last forever so this site may help you out. Last I did want to include a link to Andrew Mersereau of Premier Insurance. He has been quite helpful on a personal basis on health coverage. Don't be afraid to call an agent for help when you cannot do it yourself.

Munoz Court Case on DIME waiver

The Court of Appeals decided yesterday to reverse ICAP and the hearing judge on an issue concerning seeking a DIME. The claimant requested a DIME to review the treating doctors opinion. A DIME is a Division Independent Medical Examination which involves a process to select a doctor to conduct the examination on various medical matters such as MMI and impairment. In Munoz the claimant sought a DIME and requested a specific type of doctor. However that was not provided so he applied for a hearing to address the selection. In the meantime he did not schedule the appointment with the physician in question then set to do the DIME. Instead he filed a second application seeking penalties against the state agency for not staying the matter pending resolution of his hearing issue A hearing judge and ICAP decided he had not stayed the process by filing an application for hearing so he lost by waiver his right to seek the DIME. The claimant argued the application for hearing was sufficient to stay the DIME process. The judge and ICAP decided any stay had to be by law a motion and an application did not do it. They concluded he waived his right by not filing the motion. The appellate court reversed ICAP and determined an application for hearing was good enough to preserve the claimants right to have his DIME concerns addressed before proceeding. This appeal was more complicated then what I have indicated as it was argued the claimant did not even preserve his right to appeal and also the claimant wanted to penalize the state Division of Workers Compensation for not staying the process when he sought a hearing. Usually appeals are not simplistic but the key part of the decision involved a claimants right to stay a DIME process to address his concerns on the selection process. You can read the case here.

Totally disabled 74 year old denied permanent total benefits

In a recent ICAP case the claimant Lane was 74 years old and admittedly totally disabled. However he was denied permanent total disability benefits after a hearing and this was affirmed by ICAP. The claimant was injured in September 2008 and eventually received an impairment of 13% of an upper extremity which equaled a 8% whole person rating. There was some dispute on his restrictions but both vocational experts provided credible opinions the man was not likely employable. The claimant did have multiple non-work related conditions such as hip pain, hearing loss, balance problems and an abdominal aortic aneurysm. So what happened? The ALJ determined the claimant had failed to show that the industrial injury was a significant causative factor in his inability to earn wages. In the case there was evidence presented that the claimant had no restrictions from his work injury and also evidence he had restrictions. The claimant was working for the employer after maximum medical improvement (MMI see glossary) but was let go for an alleged failure to do something and this was given weight by the hearing judge. So being no longer employable at the conclusion of a workers compensation case does not mean permanent total benefits are awarded. The key is whether the work injury is a significant causative factor. In this case the medical evidence of post injury restrictions was not present so claimants should always focus on obtaining medical restrictions and establishing the work injury was a significant factor in being unemployable. Often with older workers they do have many health problems and actually those problems plus a significant work injury can make for a good case of permanent total disability but it is not an automatic award as the Lane case points out.

Social Networking and Online Privacy

Over at the Legal Talk Network there was a recent podcast that details much information about how websites like Facebook can affect a workers comp claim. For that matter anything online can be information that is used by the other side. Even employers can check into employees or prospective employees online. Investigators or insurance adjustors are very interested in finding out about claimants. Moreover the information you post is forever online or so it seems. In this podcast there is a very interesting discussion on this and it can also be useful for attorneys. I also noticed another podcast on surveillance and it is also revealing about what is done when surveillance is requested. Both of these podcasts are fascinating but are provided here for general information. Much of this may apply to Colorado but perhaps not all. I can say that if a claimant has a high value claim or claim for a serious injury or has something that raises a red flag that insurers will gather up information which can be from online sources or private investigators. Every claimant should be careful with their online or public activities. Even discussions with friends, neighbors or co-workers can affect the claim.

Medicare Rights Group Against GOP Changes

There seems to be a constant assault on Social Security and Medicare/Medicaid coming from I would call the far right of the political spectrum. The fact that Social Security has not been the real problem with the federal deficits and actually was borrowed against to fund government spending does not matter now. While there is no question that structural changes to make it more solvent may be soon needed the current effort seems nothing short of inhumane in its consequences if enacted. While that will not happen I find it amazing after all these years to see some questioning the usefulness of such benefits. The inability of some to accept the notion that we just need to cover the old, the disabled and the young astounds me but I guess they do not generate much income so we should minimize them is their attitude. Anyway this medicare rights group notes their disagreement with the GOP effort of one representative to pare down benefits. Also the Alliance for Retired Americans is voicing its concerns. Lastly at another site for the "middle class" they are also critical of this proposed legislation.

Recent Hearing Decisions

Over at the website for the Office of Administrative Courts they do, from time to time, post all or most of the workers comp hearing decisions. They redact or edit out certain parts especially the claimant's name but the reasoning and facts found are all there for anyone to review. The latest they have is for February 2011 and the decisions start with a claimant wanting botox to matters involving compensability and a host of other matters. It is always interesting to read what is happening at the local level. Moreover they do include names of doctors or other experts so you can see what case that doctor has been involved with. If you want to see how complex this field can get go ahead and look at these cases. Moreover the cases do set forth what the hearing judge believes is the law with citations though any of the cases can be subject to an appeal.

First Comp-Appellate case on a battle between insurers

The Colorado Court of Appeals issued a decision today involving a dispute between two insurers. The claimant was injured and in the case there were two employers. The direct employer had Pinnacol Assurance and the statutory employer had First Comp as its workers comp insurer. Pinnacol alleged it had cancelled the policy so the direct employer had no coverage leaving the statutory employer and its insurer to be responsible in the case. There was evidence presented and the hearing judge ruled that First Comp was the insurer in this case. First Comp, appealed and the Court concluded it had no standing to appeal the cancellation determination. In effect the cancellation statute was between the direct employer and Pinnacol and the injured worker but not with First Comp. It sounds to me a bit like the legal concept of privity. Even though First Comp takes a direct hit when the direct insurer is able to walk away because it cancelled the policy the lack of a close statutory relationship or benefit then prevents First Comp from appealing the issue. It lacks standing said the court so First Comp's appeal was dismissed. Certainly here the legal concept of standing to appeal was raised to prevent issues remote from the claimant from interfering with the compensation process. Perhaps an insurer would not pay benefits pending an appeal which can take over a year to the harm of the claimant or his dependents (in this case the injured worker had died). Imagine waiting for benefits while two insurers battled it out!

All About Claims Newsletter March 2011

The Colorado Division of Workers Compensation has just released a new newsletter. In it you can read the comments of former Judge Jaynes who recently passed away. There is also something on the DIME (Division Independent Medical Exam) process. The newsletter approach is a good one and would be even better if it were a regular feature. Giving us a glimpse inside the state agency makes it rather unique. Being able to just talk about things in a very informal way is helpful. It puts a face on what we sometimes see as bureaucratic when actually it is human. Many good people do their best in this field. The field itself may need much improvement but those who work in it have not been the problem. In fact looking back on the many years I have been doing it I have to acknowledge that the people at the Division and those handling hearings have been, for the most part, very decent and intelligent people. They are decent because they are respectful of others even when they must follow the rules. They are intelligent in doing their best to be fair and legally accurate in what is often a very complex field. Most of them and most who practice in this area believe they are making a difference as do I. Having said that I should add that some adjusters and employers do not play fair at all. Yet dealing with them can be difficult but also very rewarding when done right.

Colorado Injured Workers Survey

Over at the Colorado Division of Workers Compensation they just posted the results of a survey now required by law. Once the case is over or close to over a survey request is sent out to the claimant. For this first survey not that many responded but it is enough to tell us something. The survey itself asks about courtesy, promptness, medical care and overall satisfaction. The weakest area, according to claimants finishing their case, is in disputes being promptly resolved. Amen to that as delays are common in a field originally set up with good intentions. Most cases seem to take 2 years if they involve a serious injury and an attorney. Some cases go much faster but often it is because they are being treated as minor. I have always planned on at least a year but it does depend on the injury and how much medical care is needed. Even then many cases seem to drag on largely because the system has remedies that take time to work through. A Division IME adds a minimum of 3 or 4 months to the process. You file this paper and wait for the other side. Then they file and you respond. Then you wait for the Division to give you doctor names and then once selected there is a window within which you must set the appointment. Even then it takes time to receive the report and more time for the insurer to act before the claimant can act. It is a bit like a baseball game as the law gives each side a time at bat so no matter how fast you want to go it takes time to line it all up. As for the survey results you can access them by clicking here. Pinnacol received a 3.6 grade out of 5 for overall satisfation. Zurich Insurance was a 4 and the worst among the larger companies was Kroger at 2.5 but all the results have been posted. You may need a spreadsheet program to look at it all but what it tells me is that the overall grade is like a C or C plus. Let me add this...it is not good enough for those disabled and relying on a government mandated compensation program to say it was just okay. Claimants are often hurting physically, financially and are also stressed by the situation even under the best of circumstances. They deserve courtesy, promptness and decent medical care. To me the lower the grade the more adversarial the company. Persistent low grades on surveys may warrant further review or further regulation.

Social Security Compassionate Allowances

Those seeking Social Security Disability often have to go through a long and tedious process. You file, get evaluated which takes weeks if not months and very often are then denied. In Colorado you can then appeal and seek a hearing. However any hearing date is delayed for many months. I have been figuring on it taking a year or longer for the hearing and decision. Even when you win the matter must be processed for you to begin receiving benefits. If I had to estimate the time from beginning to end I would have to say the process will take over 1 1/2 years. Typically from the time you start to the receiving of benefits is long but I say that if you can no longer work get the ball rolling on this. Doing nothing is foolish as there may be things you or your attorney can do to get ready. But there are exceptions to all this. Sometimes people are granted benefits right off the bat. Most of us are not that lucky. Despite any delay if you obtain benefits you may get them backdated to a point 6 months from when your total disability actually started. That is the rule for everyone and the date of disability or onset is not always easy to figure out. Often the judge will do so in his decision. Anyway the point of this blog posting is to make you aware that the agency does have a fast track in certain cases. It is called Compassionate Allowances. For example if the person has early onset Alzheimer's disease they can be fast tracked. In other words certain serious problems can be expedited so benefits flow faster. There are at present some 88 diseases and conditions but this list can get expanded from time to time.

The Zolman Case on Bad Faith

The Colorado Court of Appeals just issued the Zolman decision on March 3, 2011 that concerns a civil claim for bad faith against Pinnacol. In this case which arose out of a workers comp case the claimant was upset with Pinnacol denying treatment and denying a change of physicians. A separate lawsuit was started alleging bad faith. This can mean a trial by jury on whether Pinnacol acted in bad faith which involves acting unreasonably. Pinnacol filed a motion for summary judgment against the civil case which was granted. This was affirmed by the Court of Appeals. So the claimant or rather the plaintiff in the bad faith case lost the case. Summary Judgment is a severe action and historically is not granted if there are questions of fact that should go to a jury. In Zolman there certainly were questions of fact on what is appropriate treatment so you would think the issue of how reasonable Pinnacol was should go to a jury. That is Pinnacol had what it believed were good reasons for denying and the claimant had reasons for saying it was unreasonable. It was a battle of medical experts which is common in this area. Yet the Court decided Pinnacol acted reasonably as a matter of law. Certainly when there are no genuine issues then a summary judgment is appropriate and that is what the case says. What I find puzzling is the use of the concept of "fairly debatable" apparently as a basis for concluding Pinnacol acted reasonably as a matter of law. As I understand it they are saying that the need for treatment was fairly debatable given doctors did side with Pinnacol but to me if there are doctors going the other way even if the dispute could be reasonable you still could go to a jury. On November 10, 2010 another panel of the Court of Appeals in Sanderson did decide that fair debatability alone does not defeat a bad faith claim. You have to wonder if these two cases are reconciliable on the basis to grant or deny summary judgment. In any event Zolman does have the Court deciding that Pinnacol's actions did not rise to the level of bad faith.

Pinnacol Has 3 New Board Members

The Denver Business Journal is reporting that 3 new people were voted onto the Pinnacol board by the legislature. One of them was highly critical of Pinnacol so it will be interesting to see what comes of this. Pinnacol Assurance is Colorado's largest workers comp insurer and has a long history. It was originally set up by the state and is a hybrid of public and private interests. Pinnacol wants more autonomy and yet many in the state legislature are upset with how it now operates. See for example one recent legislative effort in an article in the Denver Post. However Pinnacol does have points going for it. I have previously reported on this so this is just another entry in an ongoing story.
UPDATE: New Board votes to take away the CEO's bonus and in this article in the Denver Post more is discussed about Pinnacol.

Colorado Drug Card

In that many Colorado residents on Social Security or with work injuries may have financial problems or even denials of coverage Colorado does have a Colorado Drug Card. Moreover anyone at all can obtain the drug card so it does not matter what your income. Locally KRDO did an investigation which can give you a better idea about the card. Does it work? Yes although not every pharmacy may know about it. Seniors and those on a tight budget should especially take heed. While it may not always be a big benefit the card is free to all and just let them know by asking for the discount. Additionally for injured workers there is the Injured Worker Pharmacy which has its own website. Apparently a number of attorneys do let their clients know about it so it is another resource that may lower the stress level for claimants. Often a claimant cannot obtain a medication and my view is that you should try to follow through with what your doctor has prescribed. It may turn out to be covered or not but your health should be a primary. In any event always keep receipts if you pay out of pocket as perhaps reimbursement may happen.
Also...El Paso County also has a free drug card that may be helpful too.

Unrepresented Claimants Revisited

In 2006 I posted on what resources were available for those who do not have an attorney to handle their case. That is now outdated. Sometimes attorneys will not take your case. There are many reasons for this and not always personal to your case. You may have a very good case but the attorney is busy or going in a different direction. Other times the attorney may conclude that your case has merit but does not fall into an area he wants to handle. Still other times an attorney decides there is not enough at stake to commit himself and his staff to your case. By all means keep looking for an attorney even going outside your locale if you have to do so. But if you must proceed on your own the state does provide useful information for you. You should contact the customer service people at the Division. They can assist when you do not have an attorney. There are many resources and much information available to you but I caution you to be thorough and not assume it is all common sense. Workers comp is a creature of statute, cases, rules and guidelines. All of this except the cases are available to you on the web. On this blog we often will post appellate cases. Also there are lower level decisions with caselaw you can review. Also read the publication for injured workers. At this link learn about non-lawyer workers compensation. Also at this link you can read an Overview of the Worker's Compensation Claim Process. Also from this page you can read more about representing yourself in proceedings including a non-lawyers guide. Be aware that anyone involved with a claim may also be involved with two agencies the Division of Workers Compensation and the Office of Administrative Courts. Information on this distinction can be read here. These links are important pages but really just explore what Colorado does have on the web so that you are as informed as you can be. A word of caution: represent yourself only as a last resort...this area of law is complex and difficult to navigate. But it is not impossible and if you must handle it yourself read the above and use customer service noted above.

Retaliatory Discharge and Temporary Benefits

In a recent Industrial Claim Appeals Panel decision I'll call Gaines there was a retaliatory discharge of an injured worker. The worker was hurt and complaining about the employer not filing a report of injury or providing further medical help. As a result she was taken off the work schedule. Since she was not working and attributed it to the reprisal for her work injury she sought temporary benefits. The hearing judge denied her such benefits saying a reprisal is not a reason for temporary benefits. She appealed and the Panel agreed that the reprisal alone is not a proper statutory basis for temporary benefits but then remanded the case to the hearing judge to address whether her possible restrictions from the injury should entitle her to temporary benefits. Apparently this was not fully looked at by the hearing judge. There was evidence of restrictions but the judge did not adequately address that issue. The reasoning here appears to say that a claimant has to show both a medical problem and loss of wage due to an inability to work or restrictions which impair that ability. A reprisal alone is not enough. However such a reprisal may result in a separate civil claim for retaliatory discharge. The point being made is there is a distinction between a reprisal for having a claim and actual time and wage loss due to an injury. Let's say you fall out of your chair, complain it hurts even if temporary and want to file a claim. Your boss then just takes you off the schedule. So you are fully able to work but in reprisal they give you no hours. Under the Gaines case, as I read it, you'd receive no temporary benefits because you can work and really have no injury. It may be wrongful but your loss of pay is due to reprisal not to the injury. My preference is that this loss due to reprisal or retaliation be able to proceed in the workers comp case rather then in a separate civil case. The reason is that any separate civil case can take many months but the worker is receiving no income directly due to a work injury incident. But my preference is not the law. It takes disability not just reprisal to obtain temporary benefits though in Gaines the remand was to force the hearing judge to decide the disability issue.

The latest data on Social Security appeals and judges

If you are wondering how long it may take to obtain a hearing once you appeal the answer depends on where you live. It is reported that in Colorado Springs the delay to a hearing or disposition is 431 days. While they have been trying for years to speed up the process over a year remains a long time to wait. An attorney may use that time to obtain more reports or assessments but the wait is still too long for many people. In Puerto Rico the wait is shorter. In one office (Mayaguez, PR) the wait is 177 days. Then again in Lansing Michigan you can take 566 days to a disposition. Yet have the claim in Livonia Michigan and the wait is 257 days. Seems not that complicated to smooth all this out but apparently it has been tough to achieve. Waiting too long is much tougher on the disabled so wish they'd get it right. I realize it can be a matter of staffing and numbers but when video hearings are now permitted I fail to see why such a huge variance is tolerated. Last you can look up the latest figures for any judge at the website that compiles this data. You can look up what each judge in Colorado Springs is doing with the cases he or she is handling. What I saw in the latest stats is that 4 out of the 5 judges are somewhat more favorable to claimants and one is statistically denying more claims then issuing favorable or partially favorable decisions. We all know that statistics can be misleading and the types of cases a judge may be involved in can make a difference. The problem is when we discuss the odds we have to say its 50 50 but for some judges your odds are over 60% of obtaining an award. No question the older you are and the more restricted you are the better your chances but each case requires a very individualized approach.

Does Charlie Sheen Have a Workers Comp claim?

Here is just some humor: Over at The Spoof they posted a bit of satire about Charlie Sheen filing a workers compensation claim. If so does the rehab at home become a medical benefit? Of course any temporary benefits would be quite limited. They allege that given his job entails a certain lifestyle his "research" into his character should be covered since he sustained injury. I am not sure what injury but he was hospitalized so does he have a claim? Some might say he was on a frolic or detour of his own. In Colorado would his treatment even be deemed authorized? So many issues so little time. I would bet that at any hearing there would be very interesting testimony.

Retired Prehearing Judge Ron Jaynes Passes Away

I was just notified today that retired Judge Jaynes passed away this morning after a long illness. There are no further details yet. Judge Jaynes retired in 2009. What most impressed me about him is that he was very down to earth and always polite. In a day and age when we are often having to pierce through a cloud of confusing details you always knew that he would try to keep it simple and understandable. He could do so with a sense of humor too. You can see him in this 2008 newsletter on page 3. Rest in peace.

Update: Services for Ron Jaynes are Friday, February 11, 2011 at 1:00 p.m. at Highline Community Church, 6325 South University Blvd, Denver.

The FCE in Workers Comp

An FCE is a functional capacity evaluation. Often in a workers compensation case a doctor wants an FCE. It may be through his office or set up at another location. A true FCE may take several hours of testing a person's physical functioning or at least whatever functioning is sought by the doctor. You can consider it almost a tool used by the doctor to define your work related restrictions. Years ago the doctor would simply rely on his own best judgement to set your restrictions but the desire for a more accurate evaluation led to what we now call an FCE. Often it is done through a physical therapist and results in several pages of data which the doctor may or may not accept. Usually the doctor will accept the FCE results but the doctor has the option to form his own opinion. He can therefore totally adopt the FCE or adopt portions of it or only what he believes is appropriate. A claimant may be asked to lift various weights and perform other activities. Sometimes your blood pressure is taken since many in pain from activities can have a spike in their blood pressure. Similarly if you complain about high pain from an FCE activity but without any blood pressure elevation they can question your situation or so goes the theory. My impression is that an FCE can be useful information for the doctor but it does depend on the therapist and the doctor. In other words it is not purely objective. Also I have noticed that those with severe disabilities can have problems with an FCE. My guess is that they are more guarded or do not handle the structure of an FCE. Stamina may be a factor and of any results considered invalid my experience is that those most disabled have the hardest time with the testing. Last in my locale many FCE's include a claimant's range of motion measurements. While separate from an FCE the doctor may want the therapist to do the measurements that help the doctor with his impairment rating.